Background Information to the O’Byrne Letter: Letters of Claim
Whereas personal injury claims in Ireland which involve multiple defendants would call for the O’Byrne letter to be sent to the various respective defendants, an individual who wishes to make a personal injury claim against only one defendant would send to them a standard “letter of claim”. The plaintiff would have a two month period or “as soon as practicable thereafter” from the date of the “cause of action” in which to inform the alleged negligent party that a claim is being made against them. In general, a client will instruct their solicitor to perform this action, and its function is to inform the defendant that they will be contacted by the Injuries Board with a “Formal Notice” – which advises the defendant that the Injuries Board has received a personal injury assessment application.
A “letter of claim” will usually give brief details of the plaintiff’s cause of action and would ask for the defendant’s suggestions of compensation for the plaintiff. The letter of claim specifies that the plaintiff holds the defendant to blame for the accident; that it was caused by defendant’s negligence and he or she is therefore liable. The defendant would be warned that should they fail to compensate the plaintiff in full for the injuries they sustained, litigation will begin against the defendant.
Cause for the O’Byrne Letter
Letters of Claim will suffice when it is undoubtedly clear that the plaintiff has suffered an injury due to the actions of one other party; however if there are a number of potential defendants, a letter of claim will become the O’Byrne letter. This letter will be sent out to each of the parties involved and seeks to decide to what extent each defendant are each respectively liable – assuming that they all did indeed contribute to the plaintiff’s injuries.
A common example of this occurrence would be a multiple car crash. If one driver is to blame for the initial crash, the plaintiff would usually have a strong claim against that negligent party for the injuries suffered. However, it may be the case that another driver – or many more drivers – crashed into the plaintiff’s car following the initial accident, causing further damage to the plaintiff’s vehicle or perhaps even further injury to the plaintiff. For example, if the other drivers had been driving too fast or too close to the initial vehicles when the accident occurred, a claim could be made against them.
Sending the O’Byrne Letter
When multiple potential defendants are involved in an accident, it is the O’Byrne letter’s function to address the issue of liability as between the defendants. After that, it is for the individual defendant – or their legal representative – to decide that another defending party (or parties) were to blame or “more” to blame – therefore liable or “more” liable.
The O’Byrne letter should include the same general details that would also appear in a standard letter of claim; the name and address of the plaintiff and brief details of the accident in question. It does however, differ from the letter of claim by asserting that the accident occurred due the negligence of the recipient and/or another, or a number of other potential defendants but that the plaintiff cannot say who is to blame.
Inside the Letter
The O’Byrne letter requests that the recipient admit liability within an allocated time period and to suggest how to compensate the plaintiff. A warning will follow that without an admission of liability or suggestions of compensation, an application will be made to the Injuries Board, who will subsequently allow the defendant ninety days to answer their Formal Notice. Should no response be given at that time, the defendant in question will be considered liable by default.
Another warning will be included, that if court proceedings against each one of the defendants become necessary, the O’Byrne letter itself will be used to support the action, in order to fix the unsuccessful defendant(s) with expenses in favour of the defendants who are acknowledged as not being liable.
Guarantees from the recipient will be necessitated which would relate to expenses for any unnecessary court proceedings against potential defendants who will not take part in the Injuries Board assessment or who reject the amount assessed by the Injuries Board. The recipient is further warned that without this guarantee, the plaintiff will look to recover these expenses in more court proceedings and that the O’Byrne letter will be used in evidence to fix the negligent party with those payments.
In a relevant situation, a plaintiff may ask for a written undertaking that property involved in the accident will not be modified, improved or altered by the recipient until it has been examined by a skilled witness. When this appeal is applicable, it usually comes along with the advice that if this undertaking is ignored, the plaintiff will apply to court under the Personal Injuries Assessment Board Act 2003 for the required interlocutory order as may be necessary and for the reimbursement of the expenses of such an application.
An important note to bear in mind is that where several negligent parties are involved, and it is uncertain who was “most” responsible or who was to blame for the greater damage or injury, the plaintiff should not attempt to prove or even debate over this particular issue. The plaintiff’s solicitor will inform their client that this subject is only for the respective defendants to agree among themselves.